Research › Search › Judgment

Jharkhand High Court · body

2002 DIGILAW 389 (JHR)

Sachindra Prasad Singh v. State of Jharkhand

2002-03-19

TAPEN SEN

body2002
Order In this writ Application the Petitioner has, inter alia, prayed for quashing of the Memo dated 24.12.2001 as contained at Annexure-8 to the Writ Application issued by the Deputy Commissioner, Ranchi (Respondent No.2), whereby and whereunder the authority refused to release subsistence allowance during the period 19.01.1996 to 26.02.2000. The Petitioner has also made a prayer for arrears of salary which, according to him, was also refused in spite of the order passed by this Court on 07.08.2001 in C.W.J.C. No. 3559 of 2001 as contained at Annexure-1 to the Writ Application. However, during the course of argument Mr. P.K. Banerjee, learned counsel appearing on behalf of the Petitioner confined his prayer only to the payment of subsistence allowance and submitted that so far as the payment of salary is concerned, that would depend on final conclusion of the matter and he would claim salary later on. 2. The Petitioner has stated that he had earlier filed W.P. (8) No. 3559 of 2001 before this Court which was disposed off by an order dated 07.08.2001 by which the Respondent had been directed to decide the question of payment of suosistence allowance as also the arrears of salary within two months from the date of receipt/production of a copy of that order. It was also directed that the admitted arrears of subsistence allowance, if found payable, should be paid within a period of 2 1/2 months (two and half months) and admitted arrears of salary, if payable, would also have to be paid within three months from the date of receipt/production of a copy of the order and in case they disputed any claim or part thereof, they would communicate the grounds to the Petitioner within the aforesaid period of three months. 3. The Petitioner's case is that on 19.11.1996 he was put under suspension by Annexure-3 and it was ordered that during the period of suspension the Petitioner's Head Quarter would be the Namkom Block and that as per the provisions of Rule 96 of the Bihar Service Code, he would be paid allowance specified in the aforementioned Rule. The Petitioner states that thereafter an Enquiry Officer was appointed and the Petitioner was asked to submit his cause which he did on 21.12.1998 along with all relevant documents. 4. The Petitioner states that thereafter an Enquiry Officer was appointed and the Petitioner was asked to submit his cause which he did on 21.12.1998 along with all relevant documents. 4. The Petitioner has further stated that he was not paid salary for the months of August-1995, October to November 1995, January 1996 to 27th April 1996, 19.09.1996 to 18.11.1996 and Earned Leave from 28.04.1996 to 18.09.1996. According to the Petitioner these amounts relate to a period prior to the order of suspension which took effect from 19.11.1996. At paragraph 20, the Petitioner has stated that he was not paid allowances too although he did not have any gainful employment, whatsoever, during the period of suspension, either in any other Government Department or Semi Government Department nor was he carrying on any business. At paragraph-30 also, the Petitioner has stated that during the period of suspension he was not engaged in any other employment, trade, profession or vocation and that in compliance of Rule 96 (2) of the Bihar Service Code he had furnished a certificate to that effect. The Petitioner has also stated that the Enquiry Officer submitted a report but did not find the Petitioner guilty of any of the charges levelled against him. However, the Deputy Commissioner, Ranchi did not agree with the findings of the Enquiry Officer and appointed another Enquiry Officer to enquire afresh into the charges levelled against the Petitioner. However, by the same order i.e. the order dated 27.03.2000, while ordering for a fresh Enquiry, the Deputy Commissioner also revoked the order of suspension and posted the Petitioner in the Lapung Block on the vacant post of a Jansewak. While concluding the Deputy Commissioner directed that salary, etc. in relation to the Petitioner, during the period of suspension, would be decided after conclusion of the departmental proceedings. Thereafter, the Petitioner has stated in paragraph-23 that even the Second Enquiry Officer could not find any materials to prove any of the charges levelled against the Petitioner. Thereafter, the Deputy Commissioner again appointed a third Enquiry Officer. The Petitioner has stated that even the third Enquiry Officer could not find any material to substantiate the charges against the Petitioner. Aggrieved by the action of the Respondents in withholding the salary and allowance of the Petitioner for a period prior to his suspension, the Petitioner filed WP. Thereafter, the Deputy Commissioner again appointed a third Enquiry Officer. The Petitioner has stated that even the third Enquiry Officer could not find any material to substantiate the charges against the Petitioner. Aggrieved by the action of the Respondents in withholding the salary and allowance of the Petitioner for a period prior to his suspension, the Petitioner filed WP. (S) No. 3559 of 2001 and by order as contained at Annexure-1, directions referred to above were made. 5. Thereafter, the Petitioner communicated the order of this Court passed on 07.08.2001 through a representation addressed to the Deputy Commissioner, Ranchi on 11.08.2001 and requested for payment of salary and allowance. But, instead of paying the same, the Deputy Commissioner, Ranchi, appointed a Fourth Enquiry Officer without, fixing any time limit for submission of the report. Being aggrieved the Petitioner filed WP. (8) No. 5077 of 2001, wherein he prayed for quashing of the departmental proceedings but the said Writ Petition was dismissed by order dated 09.10.2001 as contained at Annexure-2 to the Writ Petition. 6. The grievance of the Petitioner is that instead of making payments within a period of 2 1/2 months, as directed by this Court on 07.08.2001 in W.P. (S) No. 3559 of 2001, the Deputy Commissioner slept over the matter for more than 4 1/2 months and finally by the impugned order/letter dated 24.12.2001 communicated to the Petitioner that he would not be paid any subsistence allowance because of failure to mark attendance in the office of the Block Development Officer, Namkom during the period of suspension and that the Petitioner would not be paid his salary during the period 23.12.1995 to 18.11.1996 because he was facing departmental enquiry for absence during the said period. Accordingly, the Petitioner has made a prayer for quashing of the aforementioned order dated 24.12.2001 and has confined his writ Petition in relation to payment of allowances only to the extent as provided under the provisions of Rule 96 of the Bihar Service Code and sought leave from this Court to be allowed to make a prayer for payment of salary on conclusion of the departmental proceedings. 7. Leave as prayed for is granted to the Petitioner. 8. In the instant case, however, Respondent Nos. 2 and 3 have filed a counter affidavit wherein they have replied to the various contentions contained in the writ petition. 7. Leave as prayed for is granted to the Petitioner. 8. In the instant case, however, Respondent Nos. 2 and 3 have filed a counter affidavit wherein they have replied to the various contentions contained in the writ petition. However, since the Petitioner has confined his prayer only to the payment of the allowances, it is not necessary for this Court to enter into those facts at this stage because any observation made may have a direct bearing with the pending departmental proceedings. The only question, therefore, that needs to be gone into is as to whether the respondents were justified in refusing the pay allowances to the Petitioner contrary to the provisions of Rule 96 of the Bihar Service Code. 9. The provisions of Rule 96 of the Bihar Service Code makes it clear that the government servant under suspension shall be entitled to the payments mentioned therein and the only ground on which such payment can be refused has been provided in Rule 96 (2) which says "No payment under Sub Rule (1) shall be made unless the government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation", In the instant case the Writ Petitioner has specifically mentioned at paragraph 20 that he did not have any gainful employment, whatsoever, during the period of suspension, either in any other Government department or Semi Government department, nor was he carrying on any business or trade. He has also repeated at paragraph 30 the same thing and in the said paragraph-30 he has made a further statement to the effect that in compliance of Rule 96 (2) of the Bihar Service Code he had furnished certificate to that effect. Paragraphs 20 and 30 of the Writ Petition has been replied by the Respondent Nos. 2 and 3 at paragraphs 16 and 17 of their counter affidavit, but the aforesaid specific statements made by the Writ Petitioner has not even been touched nor denied i.e. the statement to the effect that the Petitioner was not gainfully employed and that the Petitioner had furnished certificate as per Rule 96 (2). 10. In that view of the matter this Court has no option but to proceed on the basis as if the averments made by the Petitioner has been admitted by the Respondents. 10. In that view of the matter this Court has no option but to proceed on the basis as if the averments made by the Petitioner has been admitted by the Respondents. Reference in this context may be made to a Judgment of the Hon’ble Supreme Court reported in 'AIR 1993 (2) S.C. 2592' which has stated that if certain averments have been made in the Writ Petition by the Petitioner and they are not controverted by the Respondents, the High Court should proceed on the basis as if these averments had been admitted by the Respondent. A similar view was taken by the Division Bench of the Hon'ble Patna High Court in the case of Bhola Singh and others vs. State of Bihar' reported in 'AIR 1972 Patna 412'. At page 427 it is held that averments made in the Petition which have not been traversed must be taken to be admitted. 11. In the instant case the Respondents have nowhere denied the specific assertion of the Petitioner that he was not gainfully employed and that he had submitted the necessary affidavit under Rule 96 (2) of the Bihar Service Code. In that view of the matter it has to be accepted that the Petitioner was not gainfully employed during his period of suspension and that he had submitted a certificate to the effect that he was not gainfully employed as per requirement of Rule 96 (2) of the Bihar Service Code. 12. At paragraph-10, the Respondents have stated that according to the instructions issued by the Department of Personnel, Government of Bihar, as contained at Annexure-A to the counter affidavit, which is a Circular dated 02.08.1985, the Petitioner should have marked the attendance register in his Head Quarter which was fixed after suspension, but the Petitioner did not do so and, therefore, the subsistence allowance for his suspension period has not been paid to the Petitioner. This statement has been made specifically at paragraph-12 of the counter affidavit and the fact relating to non marking of the attendance register in the Namkom Block has been made at paragraphs 10 and 11 of the said counter affidavit. 13. This statement has been made specifically at paragraph-12 of the counter affidavit and the fact relating to non marking of the attendance register in the Namkom Block has been made at paragraphs 10 and 11 of the said counter affidavit. 13. A similar question arose for consideration before a Division Bench of the Hon'ble Patna High Court in the case of 'Shankar Mandai vs. State of Bihar and others' reported in 1994 (2) B.L.J.R. 154 wherein their Lordships have held that prima facie it appears that an- employee who is placed under suspension is entitled to subsistence allowance only upon production of a certificate to the effect that he was not gainfully employed at any other place. Since the statement of the Petitioner to the effect that he had furnished the said certificate has not been controverted, it has to be admitted that he had submitted such certificate to the Respondents. In that view of the matter this Writ Petition is allowed and the impugned order in so far as it relates to the refusal on the part of the concerned authority in refusing to pay allowance as contained at Annexure - B is hereby set aside. 14. The matter is remanded to the Deputy Commissioner, Ranchi (Respondent No.2) to pass a fresh order in accordance with law. 15. 100 Writ Petition is allowed in terms stated above.